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2006 DIGILAW 1534 (AP)

S. Basheer Ahmed v. Veluru Munirathnam

2006-12-06

L.NARASIMHA REDDY

body2006
JUDGMENT :- The sixth defendant in O.S. No.388 of 1986 on the file of the Principal District Judge, Punganur filed this second appeal. The first respondent is the sole plaintiff in the suit. For the sake of convenience, the parties are refereed to as arrayed in the suit. 2. The plaintiff and defendant Nos.1 to 5 are brothers and the second defendant was the karta of the joint family. The suit was filed for the relief of partition and separate possession of item Nos.1 to 12 of the suit schedule property. He pleaded that the said items of property are ancestral and there was no family partition. It was alleged that item Nos.10 to 12 comprising of an extent of Acs.33.00 of dry land was sold by the second defendant in favour of defendant Nos.6 and 7, through a sale deed dated 29-4-1985, without there being any family necessity. 3. The suit, particularly insofar as it related to item Nos.10 to 12 was resisted, by the defendants. It was pleaded that the said items were sold for the better enjoyment of the property, and that all the brothers, except the plaintiff, have taken their respective shares of the sale consideration. It was also pleaded that the share of the plaintiff was kept in a separate account. 4. During the pendency of the suit, defendant Nos.1, 2 and 4 died. Defendant Nos.8 to 12 were brought on record as legal representatives of the first respondent and defendant Nos.I3 to 20 were added as legal representatives of the second defendant. The parties agreed that there were no legal representatives to the fourth defendant. The trial Court passed a preliminary decree directing that item Nos.1 to 9 of the suit schedule property be divided into six shares, and that one such share be allotted to the plaintiff. As regards item Nos. 10 to 12, the trial Court directed that the plaintiff shall be paid his share of consideration with interest @ 12% from the date of sale through Ex.B2. 5. The plaintiff filed A.S.No.146 of 1999 in the Court of Senior Civil Judge, Punganur, not being satisfied with the preliminary decree passed by the trial Court, in relation to item Nos.10 to 12. 5. The plaintiff filed A.S.No.146 of 1999 in the Court of Senior Civil Judge, Punganur, not being satisfied with the preliminary decree passed by the trial Court, in relation to item Nos.10 to 12. He pleaded that though the trial Court found that the said items were sold without there being any family necessity, the sale was held binding upon him and his right was restricted to the receipt of consideration. The lower appellate Court allowed the appeal through its judgment dated 12-2-2002 modifying the preliminary decree in two respects. Firstly, it was held that in view of the fact that the fourth defendant died without leaving any legal representatives, the share of each coparcener would be 1/5th and not 1/6th. The second aspect is that the plaintiff shall be entitled to 1/5th share in item Nos.10 to 12 and not the share in the sale consideration. 6. Sri Lakshmi Narayana Reddy, learned Counsel for the appellant, submits that the lower appellate Court misread the evidence and proceeded on wrong assumption as to the nature of sale of item Nos.10 to 12 through EX.B2. He contends that the plaintiff did not choose to question EX.B2 and despite the same, the lower appellate Court indirectly annulled the sale, insofar as the 1/5th share is concerned. Learned Counsel points out that the fourth defendant died during the pendency of the suit and it was not proper for the lower appellate Court to alter the shares and instead, it ought to have been left open to the parties to make claim to the share of the deceased-fourth defendant. 7. Sri R. Radhakrishna Reddy, learned Counsel for the first respondent, on the other hand, submits that there is neither a plea nor evidence to the effect that the sale of item Nos.10 to 12 was for the necessity of the family. He contends the very fact that each brother was paid his own share, clearly disclosed that the sale was neither for the benefit nor for the necessity of the family. Learned Counsel points out that whenever a coparcener or a sharer passes away during the pendency of the suit, it is incumbent upon the Courts, to take note of the same and alter all shares even where no application for amendment is filed. 8. The relationship of the parties in the suit is not in dispute. Learned Counsel points out that whenever a coparcener or a sharer passes away during the pendency of the suit, it is incumbent upon the Courts, to take note of the same and alter all shares even where no application for amendment is filed. 8. The relationship of the parties in the suit is not in dispute. The joint family possessed of item Nos.1 to 12 of the suit schedule property while item Nos.1 to 9 were available for partition there was some dispute with regard to item Nos.10 to 12. As karta of the joint family, the second defendant brought the said items to sale through document, marked as EX.B2. Totally different considerations would have ensured had it been a case where the karta of the joint family sold the said items for the necessity of the family. Firstly, such a plea was not raised with the same amount of force, as is needed to keep the items away from partition. Secondly, there existed intrinsic evidence to suggest that the sale was not for the benefit of the family. 9. A clear distinction exists between the necessity of the family, on the one hand, and the necessity of individual members, on the other hand. The former comes into picture where the necessity is felt, cutting across the identity of individual members of the family, and it surpasses that of any individual member or members of the unit. Circumstances may exist, where the spending of amount, or utilization of resources, exclusively for one member, can be treated as common, such as where, it is for the studies, or medical treatment, of a member, when the family is joint. Conversely, where the benefit of the individual members is similar, but is separate, and had nothing to do with the family as a unit; the same cannot be treated as common. 10. In the instant case, the admitted facts are that item Nos.10 to 12 were sold for a consideration of Rs.46,000/- and the share Of each brother was assessed at Rs.7,000/-. While it was pleaded that all other brothers were paid their respective shares, and that the share of the plaintiff was kept in deposit. It was not even pleaded that they were sold for the benefit of the family. While it was pleaded that all other brothers were paid their respective shares, and that the share of the plaintiff was kept in deposit. It was not even pleaded that they were sold for the benefit of the family. Therefore, it is clearly evident that the parties to the sale were aware that the sale was of their the respective shares not a common property belonging to the joint family, for its benefit It is also not in dispute that the appellant did not join the sale, either as a vendor or as a witness. Therefore, the sale cannot be treated as binding upon him. Being the purchaser of the shares of all other coparceners except that of the plaintiff, the sixth defendant can, as at the most, step into the shoes of other coparceners and in the ultimate partition, it may claim, and get, the share of all the brothers except the plaintiff. It cannot deny the plaintiff, of his share in the land. The mistake committed by the trial Court in this regard was corrected by the lower appellate Court. 11. Another area of controversy is about the extent of shares. It is true that the suit was filed for partition of the properties and allotment of 1/5th share to the plaintiff. That was at a time when all the other brothers were alive. During the pendency of the suit, the second defendant died without leaving any legal representatives. Thereby, the number of shares had shrunken to 5 from 6. In a suit for partition, the change of circumstances, be it in relation to alteration of shares, or the availability of properties for partition that take place till the final decree is passed must be taken into account. For this purpose, it is not necessary for the parties to file separate applications. This fact was not noticed by the trial Court and the preliminary decree was passed directing division of properties into six parts and allotment of one such part to plaintiff. Once it has emerged that one of the shares died and it was devolved upon other sharers, the alteration of the shares became eminent. The lower appellate Court directed the division of the properties into five parts and allotment of one part to the plaintiff. This cannot be found fault with. 12. Item Nos.10 to 12 have been purchased by defendant Nos.6 and 7. The lower appellate Court directed the division of the properties into five parts and allotment of one part to the plaintiff. This cannot be found fault with. 12. Item Nos.10 to 12 have been purchased by defendant Nos.6 and 7. It is stated that an institution has been brought about in a major portion. The plaintiff cannot claim any constructed area in item Nos.10 to 12 towards his share. Defendant Nos.6 and 7 shall be entitled to insist the left over un-constructed vacant land in the said area., be allotted towards the share of the plaintiff, duly ensuring that it had proper access. The trial Court shall take the same into account while passing the final decree. 13. The second appeal is, dismissed, subject to the above modification in the preliminary decree.